Emerald Supplies Ltd and Others v British Airways Plc Air Canada and Others (Third Parties) Japan Airlines Company Ltd and Others (Fourth Parties)

JurisdictionEngland & Wales
CourtChancery Division
JudgeThe Honourable Mr Justice Peter Smith,Peter Smith J
Judgment Date28 October 2014
Neutral Citation[2014] EWHC 3514 (Ch)
Docket NumberCase No: HC08C02648 HC13C01155, HC13F02027, HC13A02809 & HC13B0315

[2014] EWHC 3514 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

The Honourable Mr Justice Peter Smith

Case No: HC08C02648 HC13C01155, HC13F02027, HC13A02809 & HC13B0315

Between:
Emerald Supplies Ltd & Ors
Claimants
and
British Airways Plc
Defendants

and

(1) Air Canada
(2) Societe Air France
(3) KLM NV
(4) Cargolux Airlines International SA
(5) Cathay Pacific Airways Ltd
(6) Lufthansa Cargo AG
(7) Deutsche Lufthansa AG
(8) Martinair Holland NV
(9) Qantas Airways Ltd
(10) Singapore Airlines Cargo PTE Ltd
(11) Singapore Airlines Ltd
(12) Swiss International Air Lines AG
(13) Scandinavian Airlines System Denmark-Norway-Sweden
(14) Air-France KLM
(15) SAS AB
(16) SAS Cargo Group A/S
(17) LAN Cargo SA
(18) LATAM Airlines Group SA
Third Parties
(1) Japan Airlines Co Ltd
(2) Korean Airlines Co Ltd
(3) Thai Airways International Public Co Ltd
(4) Asiana Airlines Inc
(5) Polar Air Cargo LLC
Fourth Parties

Mr I Milligan QC, Mr P HarrisQC, Mr B Rayment&Ms A Blackwood (instructed by Hausfeld & Co LLP) for the Claimants

Mr J Turner QC & Mr C Patton (instructed by Slaughter & May) for the Defendants

Mr D Jowell QC (instructed by Hogan Lovells International LLP, Linklaters LLP, Wilmer Cutler Pickering Hale and Dorr LLP, Squire Patton Boggs (UK) LLP, and Crowell & Moring) for the Third Parties and Fourth Parties (Air Canada, Deutsche Lufthansa AG, Lufthansa Cargo AG, Swiss International Air Lines AG LAN Cargo SA, LATAM Airlines Group SA, Scandinavian Airlines, System Denmark-Norway-Sweden, SAS AB, SAS Cargo Group A/S, Societe Air France, KLM NV, Martinair Holland NV, Air France-KLM, Korean Airlines Co Ltd)

Mr P Saini QC (instructed by Wragge & Co LLP) for the Fourth Parties (Thai Airways International Public Co Ltd)

Mr A Rodger (instructed by Steptoe & Johnson) for the Fourth Parties (Japan Airlines Co Ltd)

Mr D Beard QC & Mr T Sebastian (instructed by Squire Patton Boggs (UK) LLP and Latham & Watkins LLP) for the Third Parties (Cathay Pacific Airways Ltd and Singapore Airlines Ltd/Singapore Airlines Cargo PTE Ltd)

Mr B Kennelly (instructed by Bird & Bird) for the Fourth Parties (Part Polar Air Cargo LLP)

Hearing dates: 2nd, 3rd & 6th October 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Peter Smith Peter Smith J

INTRODUCTION

1

This judgment is in respect of two applications in this action:-

1) The Defendants' ("BA") application dated 31 st December 2013 for the striking out and/or summary dismissal of the Claimants' claims in the torts of unlawful means conspiracy and unlawful interference; and

2) The Claimants' application dated 17 th April 2014 for two contentions of law in BA's Defence to be declared incorrect, struck out or summarily dismissed.

2

Those contentions in law are as follows:-

a) A cause of action in conspiracy cannot be based on foreign unlawful means; and

b) If foreign unlawful means can be relied upon as unlawful means for the purpose of a conspiracy claim, a breach of a statute in country A would (at most) confer a cause of action in respect of loss sustained in country A and not elsewhere.

3

BA's application is pursuant to CPR 3.4 (2) (a) and CPR 24 as is the Claimants' application.

THE TEST

4

The Court has a discretion to strike out a statement of case under CPR 3.4 (2) (inter alia) if it appears to the Court:-

"That the Statement of Case discloses no reasonable grounds for bringing or defending the claim……."

5

Similarly, the Court has a discretion whether to give summary judgment against a Claimant or Defendant on the whole of the claim or on a particular issue if:-

" (a) it considers that:-

i) That Claimant has no real prospect of succeeding on the claim or issue; or

ii) That Defendant has no real prospect of successfully defending the claim or issue and (b) there is no other compelling reason why the case or issue should be disposed of at a trial"

6

Thus both parties seek to invoke the Court's discretionary power to remove from the litigation issues at this early (for this action) stage.

7

The principles are well known: the Respondent to such application has to show some prospect that has a chance of success which must be real and not false, fanciful or imaginary. See the notes in the White Book paragraph 24.2.3. Particular reference should be made to the observations of Mummery LJ in The Bolton Pharmaceutical Company 100 Ltd v Doncaster Pharmaceuticals Ltd [2006] EWCA Civ 661.

QUESTIONS OF LAW

8

Both applications involved a question of law. The consideration of a question of law at these stages of proceedings is always a difficult one. As the notes under the above mentioned paragraph of the White Book show a Court is encouraged to determine what it calls "a short point of law or construction". Such consideration necessarily takes place before the evidence has been heard. There is authority for the proposition that a case should not go forward simply because there is a possibility of some further evidence arising ( ICI Chemicals and Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725).

9

Against that it has long been the case that the purpose of a summary judgment procedure does not involve a mini trial. Further as Mummery LJ said in the Bolton case, a trial Judge as the decision maker will generally have a better grasp of the case as a whole because of the added benefits of hearing the evidence tested or receiving more developed submissions and having more time in which to digest and reflect on the materials provided.

10

These applications in my view cannot be described as giving rise to a short point of law. At the end of the hearing I intimated that I would adjourn the Defendants' application to be relisted (if it so wished) after it and the Claimants had provided disclosure.

11

Having given that indication to the parties I asked them whether the Claimants' application should be similarly adjourned. The Claimants unsurprisingly were against that. However whilst they were supported in that stance by BA and Daniel Beard QC (Cathay Pacific Airways and Singapore Airlines) together with Tom Sebastian, the Part 20 Defendants who were represented by Mr Pushpinder Saini QC (Thai Airways) and Daniel Jowell QC (Air Canada, Deutsche Lufthansa AG, Lufthansa Cargo AG, Swiss International Airlines AG, LAN Cargo SA, LATAM Airlines Group SA, Scandinavian Airlines, SAS AB, SAS Cargo Group A/S, Societe Air France, KLM NV, Martinair Holland NV, Air France-KLM, Korean Airlines Co Ltd) favoured an adjournment. The basis for the adjournment was the alternative set out in CPR 24 that there was some other reason for not acceding to the application. That in my view was the fact that the Defendants' application should be adjourned.

12

The two applications in my view are inexorably linked together. Further I am unpersuaded that it is appropriate to deal with the difficult questions of law raised by the Claimants' application at this time. This is the more so when the pleadings have not yet closed, disclosure has not taken place and evidence has not been served. As will be seen further in this judgment the whole basis for each claim is not yet fully investigated.

13

I have taken a similar (and more clearly defined) decision in relation to the Defendants' application. That is more obviously a case of prematurity as the Defendants' attack on the Claimants' pleading and their application for summary judgment is based on an alleged insufficiency of evidence of "intention" (on the part of BA) to harm the Claimants' interest. It is obvious to me that in a case as complicated as this the Claimants would only be in a position properly to plead the requisite intention after they have had disclosure of BA's (and the Part 20 Defendants') internal documentation. In addition there is the possibility of obtaining evidence from non-parties i.e. the freight forwarders who are involved in the transactions as set out below. This is not a "micawberistic" approach condemned by the Court of Appeal in the ICI Chemicals case above. It is a case where in my view the pleadings establish a claim (albeit badly pleaded) which in reality will be substantiated or not, as the case may be, after disclosure has taken place. The Particulars of Claim however in my view do disclose on their face an arguable claim for conspiracy. It is not well pleaded but (doubtless for tactical reasons) BA did not seek further clarification of the vital allegations of wrongful acts done by BA with the intention of harming the Claimants which is the thrust of BA's application.

14

Equally surprisingly the question as to whether or not foreign unlawful acts could found the basis of a conspiracy within England and Wales is a discrete question of law. It is in BA's (and the Part 20 Defendants) interest if possible to have that question of law ventilated early. A decision in BA's and/or the Part 20 Defendants' favour would eliminate a significant part of the claim. Yet neither chose to invoke it but as shall be seen made vague allusions to this area of law in the pleadings. This has led the Claimants to take up the cudgels by their application seeking a negative declaration as to the contentions put forward by BA and the Part 20 Defendants that such actions cannot found the basis of a conspiracy in England and Wales.

BACKGROUND

15

In order to understand the applications, it is necessary to deal with the actions. There are 565 Claimants located in numerous territories across the world. They all sue BA in respect of losses they allegedly incurred as a result of what is said to have been a worldwide cartel in transporting...

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